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Three Link Thursday!

Hello John,

A BIG THANK YOU to all our hero donors who have chipped in to our Fall Fundraiser to get us through the end of the year! The latest individual gift donors include Vernon Zigler, Walter Grinder, Michael Kerner, Marty Albini, Andra Mount, Thomas McGovern, and William Barker. We are also very grateful to our monthly recurring donors Rob Power, Jim Abraham, and Zachary Tatum for their recent contributions. We also have a number of recent donors who have not given me permission to thank them publicly by name, but I want to express my deep appreciation here for them as well. THANK YOU!

Right now we are at just about 36% of our fundraising goal. Can you help us reach 50% by the end of October? You can make your contribution on the FIJA website by clicking this button:

Donate Now ([link removed])

And now on to the links. This week I am featuring a new resource on the FIJA website, followed by two encouraging news stories. Read on for a full slate of positive links!

1

Quotes from ([link removed]) People v. Croswell ([link removed]) (N.Y. 1804) ([link removed])

Are you familiar with the 1735 trial of John Peter Zenger? He was acquitted of seditious libel by a conscientious jury exercising their right of jury nullification. In his day, the truth of the statements he published was not a legal defense to libel. If anything, saying terrible things about government was an aggravating factor, rather than a mitigating one. The thinking at the time was it was even more scandalous and deserving of punishment if terrible things one published about government were—goodness gracious!—actually TRUE!

This was still the case in New York when Harry Croswell, the publisher of a Federalist paper called The Wasp, printed critical statements against then President Thomas Jefferson. There is quite a long story behind why Croswell was convicted while Zenger was not. It involves corrupt government officials undermining the jury's rightful role in this case. I'll get into that another day, though.

Ultimately, Croswell's convictions were appealed to the New York State Supreme Court, where they remained intact when the judges on the court split 2-2 for and against him. The above link is a page dedicated to People v. Croswell (N.Y. 1804) that is part of our online resource of jury-related quotations in copyable text and downloadable graphic formats. You will find some powerful quotes regarding the jury's right to pass judgment on both fact and law from the opinion written in Croswell's favor.

And that's just one of several pages I'm working on adding to the FIJA website on this particular case! In the coming weeks, I'll be sharing with you an online case file with a full explanation of this case and how it fits into jury rights history as well as the full opinion from which these quotes are taken. I hope that in the future when we talk about Zenger, we all will also talk about Croswell and the legislation that was passed soon after his convictions that made freedom of speech in New York substantially more robust!

2

Virginia ([link removed])

This past session, a law was passed in Virginia that addressed an incredible injustice in the state's trial by jury scheme. Before SB5007 took effect, jury trials had been bundled by law with jury sentencing. If you exercised your right to trial by jury, then you were required by law to be sentenced by jury as well.

Normally, I'd be fine with that—except in Virginia, there was a catch. Juries were bound by law to a different set of sentencing rules than judges. This effectively coerced juries into sentencing convicted people more harshly than judges. It was practically a no brainer, under these extremely unjust circumstances, for the accused to forfeit their right to trial by jury so as not to risk a harsher sentence if convicted. And lest I sound like a broken record, I will say this yet again: without trial by jury, there is no jury nullification!

SB5007 was not my ideal solution to the problem. I'd also have liked to have seen juries sentence according to the same rules that judges do, but this disparity was not corrected. However, trial by jury was unbundled from jury sentencing. Those who exercise their right to trial by jury and are convicted now have the option of choosing to be sentenced either by the jury or judge.

This has dramatically reduced the risk of exercising the right to trial by jury and resulted in a corresponding dramatic increase in the number of people who do so! Click through if you'd like to read more, including a prosecutor whining that it's not fair for the government to have a slightly less ginormous advantage on the legal playing field than they did before.

I am dedicating this bonus link with a tiny violin number to all the poor, put upon prosecutors in Virginia who will now have to be ever so slightly more respectful of a few more folks' Constitutional right to trial by jury:

Sad Tune on a Tiny Violin ([link removed]) in Honor of Virginia's Prosecutors Who Have Been So Egregiously Wronged by Having to Comply Ever So Slightly More with Our Nation's Highest Law

3

Hung Jury for Man Who Refused Mask ([link removed])

The day has come that many have been waiting for: I have found a mask case that was heard by a jury!

When local or statewide mask requirements from government started cropping up during the pandemic, many people started calling for widespread jury nullification for those who who refused to obey them. This included many people who themselves chose to wear masks, but felt that escalating others' decision not to do so to a criminal matter was inappropriate.

One problem, however, was that until/unless one is at risk for MORE THAN 6 months in jail or MORE THAN $5000 in fines or MORE THAN a certain length of probation, the Supreme Court does not guarantee a jury trial. States are free to provide extra protection above and beyond the minimum standard set by SCOTUS, but they are not required to do so. And mask-related violations are not necessarily going to be penalized harshly enough for the accused to demand and legally be granted a jury trial.

Well in this case, the accused got his jury trial...

...and the trial ended in a hung jury.

Reed Bender was sitting apart from others at a school board meeting, but declined to wear a mask as the school board's policy supposedly dictated. He was not causing a disturbance, but police were apparently called in to remove him because he would not don a mask.

That reportedly led to an altercation between Bender and police, and he was charged with obstruction of a law officer for the disturbance—a disturbance that only ensued when police attempted to enforce a school board policy which, the accused argued, did not give anyone legal authority to charge someone criminally for violating it.

The obstruction charge was a class 1 misdemeanor which put the accused at risk of up to a year in prison plus $2000 in fines, making him eligible for a jury trial. Whether by jury nullification, reasonable doubt, or a combination of both, one or more jurors maintained a not guilty vote, forcing a mistrial, which is at least a temporary win for the accused.

The prosecutor is seeking a retrial in January of 2022. Right now, this would reportedly be another jury trial. It is hard to imagine, however, that 3 months will dramatically reduce polarization over masks among the community from whom the jury is drawn. I'm keeping this one on my list to check back on later to see how this plays out!

For Liberty, Justice, and Peace in Our Lifetimes,

Executive Director
Fully Informed Jury Association





P.O. Box 5570 | Helena, MT 59858 US

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